Citation Nr: 0939485
Decision Date: 10/19/09 Archive Date: 10/28/09
DOCKET NO. 08-10 681 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for a right ankle
disability.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
S. Armstrong, Law Clerk
INTRODUCTION
The appellant is a Veteran who served on active duty from
January 1968 to January 1970. This matter is before the
Board of Veterans' Appeals (Board) on appeal from a November
2006 rating decision of the Waco, Texas Department of
Veterans Affairs (VA) Regional Office (RO).
The Veteran requested a hearing before the Board; such
hearing was scheduled for November 2009. In correspondence
received in August 2009, the Veteran stated he was unable to
attend such hearing due to cost and that he would prefer
another mode of hearing "like tele conference where you just
make the call on the output ." Under governing regulation,
a hearing on appeal (to include videoconference hearings) may
only be held in Washington, D.C. or at a VA facility having
adequate physical resources and personnel for the support of
such hearings. 38 C.F.R. § 20.705. Accordingly, the
Veteran's request for a hearing by other mode is denied.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify the
appellant if further action on his part is required.
REMAND
The VCAA, in part, describes VA's duties to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA
applies to the instant claim. While the notice provisions of
the VCAA appear to be satisfied, the Board is of the opinion
that further development of the record is necessary to comply
with VA's duty to assist the Veteran in the development of
facts pertinent to his claim. See 38 C.F.R. § 3.159.
The Veteran alleges he has a right ankle disability as a
result of an ankle fracture he sustained in a January 1970
motor vehicle accident. His service treatment records
contain no mention of this event. Notably, the alleged
injury in service would have occurred after his November 1969
service separation examination. He has provided specific
details of the incident, including where it occurred on the
right side of Highway 101 (between Paso Robles, California
and Camp Roberts), who was with him at the time (notably,
another serviceman, a Sgt. Harper), when it occurred, where
he was first seen (Camp Roberts and Fort Ord Army Hospital),
and that he was processed out of the Army with a cast on his
right ankle, which was removed (in March or April of 1970) at
the VA medical center (VAMC) in Dallas, Texas (and that he
was provided a travel allowance by VA for the cast removal).
While the RO has attempted (without success) to secure
treatment records from the facilities the Veteran has
identified, the record provides no basis for determining
whether such records existed (but were retired or destroyed)
or never existed (contradicting the Veteran's accounts).
Given the detailed accounts the Veteran has provided, VA's
duty to assist would appear to extend to some additional
alternate source development of corroborating evidence (to
include an examination to determine whether he has bony
pathology consistent with a remote fracture).
Accordingly, the case is REMANDED for the following:
1. The RO should secure for association
with the claims file copies of the
Veteran's complete service personnel
record. The RO should also arrange for a
search of alternate source records (e.g.,
morning reports of the Veteran's assigned
unit in January 1970) for corroborating
evidence that he was hospitalized or
involved in an accident while in service
in January 1970. The RO should also
attempt to corroborate the accident by
contacting the local law enforcement
authorities where the accident is alleged
to have occurred (to include California
Highway Patrol and Paso Robles Police
Department records). If the event is too
remote and any such records would have
been destroyed, it should be so noted for
the record.
2. The RO should ask the Veteran to
provide any further identifying
information (e.g., first name, unit)
regarding the other serviceman involved in
his alleged accident leading to the ankle
injury (Sgt. Harper). If the Veteran
provides such information, the development
for corroboration of the accident in
service should include, if feasible (if
not, explanation should be provided), a
search for VA records pertaining to the
other serviceman involved (Sgt. Harper) to
ascertain whether he has service connected
disability residual from the accident.
3. With any assistance necessary from the
Veteran, the RO should arrange for further
development for records of the Veteran's
alleged treatment at Silas B. Hayes
Hospital at Fort Ord, Camp Roberts, and
Dallas VAMC. The Board is aware that the
record includes a certification of
unavailability of the records at those
facilities (and at the National Personnel
Records Center). What is now sought is
information regarding records storage
practices at those facilities,
specifically, whether once existing
records of one time treatment in January
1970, would have been maintained at the
facilities indefinitely, or whether they
would have been retired or destroyed. If
the practice was to retire the records,
the facility to which they would have been
forwarded should be contacted for the
records. As the Veteran has indicated
that he was reimbursed for travel to the
Dallas VA hospital for cast removal in
approximately March 1970, it should also
be determined whether records of such
reimbursement would still be maintained in
the finance division of the hospital (or
at some storage facility) and if so, they
should be searched for confirmation of the
Veteran's alleged reimbursement.
4. The RO should then arrange for the
Veteran to be examined by an orthopedist
to determine whether he has a right ankle
disability that at least as likely as not
was incurred in an accident in service.
The Veteran's claims file must be reviewed
by the examiner in conjunction with the
examination, and studies completed should
include X-rays of the ankle. In the
opinion responding to the question posed,
the examiner should specifically comment
as to whether the Veteran has right ankle
pathology that is consistent with a remote
healed fracture. The examiner must
explain the rationale for all opinions.
5. The RO should then re-adjudicate this
claim. If it remains denied, the RO
should issue an appropriate supplemental
statement of the case and afford the
Veteran and his representative the
opportunity to respond. The case should
then be returned to the Board, if in
order, for further review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999). This claim must be afforded
expeditious treatment. The law requires that all claims that
are remanded by the Board for additional development or other
appropriate action must be handled in an expeditious manner.
_________________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).